Summary: We will not investigate this complaint about the Education, Health and Care Plan process for Mr X’s child. This is because Mr X had a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) which he has now used. This places the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about the Education, Health and Care Plan (EHC Plan) process for his child (Y). Mr X is unhappy with the school named in Y’s EHC Plan and how the Council decided this. Mr X says the Council’s actions have left Y in an unsuitable school and have forced him to appeal to the Tribunal. Mr X is unhappy with the Council’s handling of his complaint.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X contends the Council named an unsuitable school in his child’s EHC Plan. The Council issued a further EHC Plan and Mr X remained unhappy with the school named. Mr X questions how the Council decided the schools to name and the Council’s consultation process. Mr X says the Council’s actions delayed his right of appeal, which he has now used.
9. Parents who are unhappy with the content of their child’s EHC Plan have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge the content of an EHC Plan. We generally expect parents to use their appeal right unless it is unreasonable for them to do so. We cannot investigate where we decide it was reasonable for a parent to have appealed.
10. When a parent has used their right of appeal it places the matter appealed outside our jurisdiction. This applies from when the appeal rights were available to when the Tribunal issues its decision. We are also barred from looking at anything linked to the matter appealed. So, where a parent has appealed the school named in an EHC Plan, we cannot look at any alleged failings in the assessment or consultation process. This is because they cannot be separated from the matter appealed and which the Tribunal will consider.
11. We will not start an investigation into Mr X’s complaint. This is because it was reasonable for Mr X to appeal the Council’s initial decision to the Tribunal. An appeal could have given Mr X the outcome he wanted – a change of school. An investigation by the Ombudsman could not. The original EHC Plan has been replaced by an amended version.
12. Mr X has used his right of appeal against the latest EHC Plan. That places the matter appealed and any connected issues outside of our jurisdiction. It includes the consultation process and how the Council decided the school it would name. There was no delay by the Council which prevented Mr X’s right of appeal. The issue at the heart of this case remains the school named in the EHC Plan. Mr X’s appeal to the Tribunal places his complaint outside our jurisdiction with no discretion.
13. Mr X is also unhappy with how the Council considered his complaint. We will not investigate complaint handling as a standalone issue if we are not going to consider the issue which led to the original complaint. That applies to this case.

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Final decision

14. We will not investigate Mr X’s complaint. It was reasonable for Mr X to appeal to the Tribunal, and he has now used that right. This places the matter outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman